Claudia Martinez

The State of Florida is well-known for its Stand Your Ground law. The essence of the Florida law is recited throughout the country as the controversy on the topic continues to grow. The procedural limitations of Florida’s Stand Your Ground law, however, are not as popular. In a recent opinion, the Florida Supreme Court addressed what happens when the wrong burden of proof is used during an immunity hearing consisting of a Stand Your Ground defense.

In 2017 the Florida Legislature amended Florida Statute Section 776.032, which took effect on June 9, 2017, to include the necessary burden of proof of clear and convincing evidence. This was in direct response to a previous holding from the Florida Supreme Court in 2015, asserting that “[a] defendant bears the burden of proof, by a preponderance of the evidence, to demonstrate entitlement to Stand Your Ground immunity at [a] pretrial evidentiary hearing.” Bretherick v. State, 170 So. 3d 766, 775 (Fla. 2015).

A retroactive application of this new burden of proof had not been adjudicated until recently. In Boston v. State, 296 So. 3d 580 (Fla. 1st DCA 2020), a defendant was charged with aggravated battery with a deadly weapon from an altercation taking place in 2016, which was before the legislative amendment went into effect. The defendant claimed immunity under the Stand Your Ground law. The trial court ultimately decided that the pre-amendment standard of a preponderance of the evidence should be applied, since the altercation had taken place in 2016. The defendant was subsequently found guilty of a lesser-included offense, after both his immunity hearing and his self-defense claim failed.

On appeal, the issue before the Court was whether this retroactive application of the pre-amendment standard of proof had affected the outcome of the defendant’s case. In reaching its conclusion, the Florida Supreme Court placed special emphasis on the hierarchy of the standards of proof. Proof beyond a reasonable doubt is the highest and most burdensome standard to meet. Once the State has met this burden, it seems reasonable to conclude that a lower standard – such as a preponderance of the evidence or clear and convincing evidence – has been satisfied. A retroactive application of the preponderance of the evidence standard is therefore a harmless error bearing no significant change in the outcome of the case.